TBA Law Blog

Posted by: Christopher Kelly on Jun 1, 2018

Journal Issue Date: Jun 2018

Journal Name: June 2018 - Vol. 54, No. 6

First Place

I opened the door to the courthouse and cool conditioned air rushed out to greet me. The familiar smell of historical mustiness, mingled with a hint of citrus from last night’s cleaning, reminded me I was home. This was my local courthouse, the one I could see from my office window, my home field. I had spent most of the last month on the dockets of the courthouses of neighboring counties. While it is normal for a small-town lawyer to travel, and while I’ve been to all these places enough that I know their judges, clerks and court officers, it’s not like my local courthouse. I like my courthouse with its people and its peculiarities. It was good to be home.

Stepping inside the small space between the door and the metal detector, I exchanged greetings with Deputy Hawkins as he glanced up from his post next to the metal detector, the morning crossword puzzle before him. I maneuvered around the metal detector without having to go through it, one of the privileges of being a local.

“Morning, Todd. See they got the A team on the door this morning,” I said as I passed. “So watch yourself,” he responded as he put his pen back to the paper.

Opening the lid on the box of donuts I was carrying, I said, “C’mon, we all know cops love donuts. Go ahead. Grab one.”

He looked back up at me, smirking, as he slowly took one from the box. I handed him a napkin from my pocket. “Thank you, Counselor,” he said, mockingly. “I just can’t understand why no one likes lawyers.”

“That is a great mystery, “ I called out as I passed him. “I think people just don’t know us.”

He laughed and then asked, “You goin’ to Uncle Ted’s Sunday?”

“We are. See you there, “ I replied. Todd was also my cousin.

Walking past the various composites of the local bar from over the years, I made my way down the hallway and past the county offices. I bypassed the ancient, rickety elevator and took the stairs to the second floor to the Circuit Court Clerk’s office where I stopped at the counter where I was greeted.

“Well, Mr. Franklin. I didn’t know if you were still practicing around here or not.”

“Good morning to you as well, Miss Margaret. I’ve been on the road so much lately, I’ve been wondering if I was still practicing around here any more. But I’m here this morning. Bearing gifts.” I opened the lid on the box of donuts.  Donuts are a great way to maintain good relations with the clerk’s office.

Miss Margaret stood up from her chair to get a better look inside the pink box. “One’s missing,” she pointed suspiciously.

“I had to feed the gatekeeper downstairs,” I replied.

“Cops do love donuts,” she stated, as she selected one with frosting and sprinkles.

“May I go back?” I asked. Like approaching the bench, you did not go past the counter without getting her approval. She had actually been the Circuit Court Clerk herself for 25 years and had stayed on after deciding not to run for re-election (and handpicking her successor). Now 10 years later, she still ran well those parts of the office under her control. Approving of my deference to her authority, she motioned me through. “Just put ’em by the coffee pot.”

I walked beyond the counter and by the open office space packed with desks, filing cabinets, chairs and potted plants. Once arriving at my prescribed destination, I announced, “Got some donuts here. To make your Friday better.”

Most of the other staff had watched me walk in. Betty, the most senior of the office staff (besides Ms Margaret) and also my Sunday School teacher when I was in sixth grade, had already stood and followed me to the cluttered table that housed the coffee pot and a mismatched collection of coffee mugs.

“What have we got here?” Betty asked rhetorically as she looked the box over. Selecting a donut, she grabbed one of the mugs and poured herself some coffee.

“What’s new in your world?” I asked her.

“Oh, not much, I guess. Getting ready for the budget. We’ve got to shave 5 percent off last year’s budget. All departments but the sheriff’s office. Reducing law enforcement spending doesn’t play well in an election year, you know.”

I nodded.

“How about you?” she asked as she wiped glaze from her lips.

“All’s going well. Just working and keeping up with teenagers.”

She smiled, “I remember those days. You meet yourself coming and going. Just know these days go quickly. You better enjoy them.” Since she had been my Sunday School teacher, she still liked to give advice.

“I’m doing my best,” I affirmed.

“I see you’re here on Matthew Jones this morning,” she continued.

“We’ve got a plea agreement to announce,” I affirmed.

“I don’t know him well, but loved his family. He had so much tragedy early in life. Never really had a chance,” Betty said, shaking her head slowly. By now, two other ladies had approached the table.

“That’s true. I’m hopeful this will be a wake-up call for him. Do his time and then fly straight. Changing the subject, who is covering Judge Owens’ docket this morning?” I asked, stepping away from the table to allow the newcomers access. Betty and I moved over next to a Soviet-era filing cabinet.

“He is, I guess,” she replied.

“But he was in the hospital yesterday,” I remarked. “Another judge isn’t covering the docket? That doesn’t make sense.”

“We went by the hospital yesterday and asked him about it,” she said. “He made it clear that he would be on the bench this morning. Our only other local option is Judge Newell, and he’s on vacation. We thought we’d just cancel this morning. We asked the judge about canceling, and it made him mad that we even asked.” Irritation was evident in her voice.

Shaking her head, she continued, “He told us how he had not missed a docket in 32 years, and he wasn’t going to miss one now, even with his heart. I’ve never met someone so cantankerous and so... just ... I don’t know how to describe it. But you know what I mean. But I’ve said enough,” she concluded, waving her open hand in front of her as if to erase her last words. “I shouldn’t be talking about the judge like that.” She took a bite of donut to muffle herself from saying more.

“I won’t tell anyone, I promise,” I assured her. And I did know what she meant. He was by far the most difficult judge before whom I had ever practiced. He was well known among the bar across the state for his less-than-personable temperament. He was not a lawyer’s judge. He relished dressing lawyers down whenever he could, sometimes for cause and sometimes without. He was even more difficult on criminal defendants. As defense counsel, you could almost expect every objection, yours or the prosecutor’s, to go against you. He was loathed in the courtroom, but loved on the campaign trail every eight years. Law and Order Owens.

She then remembered, “And you’re the only one on the docket this morning. Everyone else cancelled for today. Enjoy yourself,” she said, smiling. “And thanks for the donuts,” she said, as she took one more to her desk.

I looked at my watch. “Guess I do need to get to the courtroom. Though I don’t see the judge’s car in the parking lot,” I observed aloud as I peered through the window blinds.

“We actually sent an officer over to the hospital this morning to pick him up. He wasn’t in any condition to drive,” Allison, one of the other clerks, commented to me as she grabbed a donut on her way out the door to the courtroom. I followed her down the hall, making small talk. She was the newest member of the Court Clerk’s staff, maybe a year on the job, which explained her assignment to Judge Owens’ courtroom. My client was standing outside the courtroom in the hallway, and we all walked in together.

Morning light streamed in from the windows that framed one wall of the courtroom. The bailiff, Officer Chad Patterson, was seated in the empty jury box, casually talking to Assistant District Attorney T. Nicholas Fulton who was leaning on the rail. Nick was also the newest member of his staff. A routine plea agreement didn’t require the heavy hitters. The court reporter was perched behind her equipment by the witness stand. The deputy clerk made her way up to her spot on the immense wooden bench that overlooked the courtroom.

After getting my client settled in, I spoke to the court reporter and walked over to the conversing bailiff and DA.  “Good morning, gentlemen,” I said, extending my hand to both of them. “How are things in the world of law enforcement?”

“Good, Jimmy,” the bailiff answered. He and I had played football together in high school. He had even played a year of college ball before injuries brought him home to the sheriff’s office. “Looks like you’re the docket. If the judge shows, that is.”

“If the judge shows?” the young DA asked. “What do you mean?”

“Judge has been in the hospital again, Nick. The DA needs to keep you up on these things,” Chad told the young prosecutor, cutting his eyes over at me, smiling a bit.

Chad continued, “Judge said he was gonna be here this morning. We sent Anderson over to the hospital to get him, but I’ve not heard that he’s back yet,” he added, tapping the earpiece in his ear that was connected to his walkie-talkie. Looking at his watch, he said, “If he does show, he’s gonna be late. That’d be a first.”

“If you men are done with your huddle over there, can we start court?” the unmistakable voice, as strong as ever, of Judge Owens’ resounded through the courtroom. Officer Patterson, coming close to re-aggravating his old injuries, jumped to his feet and loudly choked out, “All rise!” Nick and I spun around, and there was the judge, wearing his black robe, walking to his chair behind the bench. None of us had heard the familiar creaking door from his chambers open. From the looks of the others in the courtroom, they were just as surprised with this sudden pronouncement from above as we were.

“Don’t worry about all that pomp and circumstance,” the judge said, waving his hand as he took his seat in his chair. “Let’s get moving. I don’t have all day. And don’t worry about calling the docket.”

I walked quickly to my table with Nick right behind me going to his. Allison fumbled to hand the court’s file to the judge.

“Thank you, Ms. Darden, “ he said. The clerk was taken aback at the use of her name, positive it was the first time he had ever used it. By now Chad was at his post between the bench and the counsels’ tables. His shaved head was crimson with both embarrassment and rage as he considered the chewing out that he was sure to get and the one that he was going to give Anderson.

The judge opened the file and began skimming the papers inside it, oddly without the thick glasses he had worn for as long as I could remember. “If you’ll give me a moment, I’ve been in the hospital the last few days, and I need to get caught up.”

I was shocked at how bad the judge looked. He looked awful. Really, really awful. His dark eyes were more sunken than I had ever noticed on a person. His skin was pale, almost transparent.  He was probably the worst looking person I had ever laid eyes on.

“OK, I’m ready,” he announced, motioning with his hands for both sides to stand.  I grabbed my client’s elbow and nudged him up with me as I stood. “I see we’re here to approve a plea agreement, right?”

“Yes, your Honor,” the DA and I replied in unison.

Buttoning his coat, the young State’s attorney sprang into action. “The DA’s office has reached an agreement with Mr. Jones — through his attorney, and ...”

“Very well. And I have it here, “ the judge stated, as he waved a few sheets of paper from the file in the air. He then called on me, “Mr. Franklin?”

“We have reached an agreement, your Honor.”

Looking at my client, he continued, “Mr. Jones.” The judge almost seemed civil. “There are some questions I need to ask you before I approve it. Do you understand?”

My client and I had discussed this. “Yes, sir, judge.” His hands shook as he clasped them behind his back. Nick took his seat.

The clerk swore my client in, and the judge started through his usual litany of questions. Somewhere in the middle of them, he just stopped.

“You know, Mr. Jones, enough with these. I’ve got some other ones for you.” The assistant DA was brought out of his trance with this change of pace and was suddenly interested in what was happening in front of him

“John Nelson was your mother’s father, right?”

The young DA, knowing he needed to do something but unsure of what that was, rose to his feet, “Your Honor, I object ....I think ... to these questions.”

The judge directed his gaze at the state’s attorney.

“On what basis, Mr. Thompson?” Not waiting on an answer, the judge made his ruling on the yet-to-be-announced objection. “It doesn’t matter. Take your seat.”

“But your Honor, this is highly unusual,” the young DA replied. It wasn’t a smart move to speak back to Judge Owens, though I had to give him some credit for mustering up the courage.

“Well, Mr. Thompson, this is an unusual day. Have a seat.”

Nick hesitated. He looked as if he was on the verge of saying something, when wisely, he sat down. The judge nodded at him as if to say, “Good boy.”

“Now, Mr. Jones, back to my question. You’re John Nelson’s grandson, right?”

My client looked at me, and I nodded to him as encouragement to answer. I did not know where the judge was going with this, but I did not want to draw his ire right now.

“Yes, sir.”

“He’s a good man. I’ve known him a long time. I got to catch up with him today. I knew I’d be seeing you.”

I knew then we had an issue on our hands. Mr. Nelson died in the auto accident that had also taken Matt’s mother and father over 20 years ago. Mr. Nelson was driving them to Nashville to see a specialist for Matt’s newborn baby brother. Bad weather and a careless driver caused the wreck that devastated the Nelson family. No one survived it.

Chad looked at me. He knew this as well. Nick noticed us looking at each other, but had no idea why.

I stood, “Your Honor, I’d like to take a recess, please.” My client looked at me, a look of confusion on his face.

“Mr. Franklin, we need to be wrapped up here pretty soon. I don’t have much time this morning, and I’d like to move along.”

Unsure of how to respond to that, I simply nodded and sat.

Judge Owens resumed his conversation from the bench with my client. “I’ve always thought a lot of your family. But you never got to really know them, did you?”

Nick looked at me, his eyes wide. I shrugged.

“No, sir. I lived with my Grandma until I was 10, but then she died. She was the only family that I really remember.”

“After that, you were in foster care, right?” I could tell Nick was anxious to jump up again. I caught his eye and discretely motioned for him to stay seated. I could tell he was mentally wrestling with whether to take my advice.

My client answered, “That’s right. I lived with relatives in Mississippi, but that didn’t work out. I stayed with several foster parents, but that didn’t work out great either.”

“And then you came back to town about three years ago, right?”

“That’s right. I turned 18 and came back here. It’s always been home to me.”

“How’d you get into this trouble, Matthew?” the judge asked with a tone of compassion that I would not have thought possible of him.

“Don’t know, judge.” This really was a conversation between them. “I guess I’ve never known how to act. I turned 18, got all that money, and just blew through it. No one to tell me what to do. I just went crazy. Course, the money ran out, and I made some bad decisions. And I got caught, and here I am.”

“Matthew, are you sorry for what you’ve done?”

“Sure. Very sorry. And not just cause I got caught. I mean it.” Then, almost as an afterthought, he added, “I’ve been talking to a counselor at the tech school, and he said he’d help me get in out there when I get out.”

“I’m glad to hear that, I really am,” Judge Owens replied. He closed the file and looked at my client a long time. “I am dismissing the charges against Matthew Jones,” the judge announced, as he rapped his gavel. The DA, the bailiff, the court clerk and I were all equally shocked.

“Your Honor, this is highly irregular,” Nick shouted as he stood. “You can’t do this. This isn’t appropriate. There’s no motion to dismiss in front of you. You can’t do this.” I’m sure he was wondering how he would explain this turn of events back in the office.

“Please have a seat, Mr. Thompson,”  the judge calmly stated. Chad made eye contact with Nick as if to say, “I know this isn’t right either, but please just do what he says.” Nick sat back down.

Clasping his hands in front of him, the judge addressed the courtroom. “I’ve been on this bench all these years and made thousands of judgments. I know that I’m known to be a hard judge. And I’ve enjoyed that reputation. Do you know why? Because I enjoyed the power. I like deciding the fates of others. But I’ve rarely acted with mercy or with compassion. Recently, today, in fact, I looked back on my life, and I’ve considered my life’s work, and I don’t like all of it. So, today, I want to try to do something for this boy — for you, Mr. Jones — that gives you a second chance. A chance at redeeming yourself. Do that, OK?”

At the judge’s final word, the door at the back of the courtroom flung open. Though in shock at what was happening from the bench, I was even more shocked that someone had burst into the courtroom.  Irrespective of what had just been said about mercy and compassion, the judge would have someone’s head on a platter.

I spun around to see Betty making her way down the aisle, visibly distraught and crying. “He’s dead, he’s dead. Judge Owens died early this morning. Deputy Anderson just called. Nurses found him this morning.”

The words hung in the air, as I tried to process them. What was she talking about? As she walked up to me, I put my hand on her arm, “Betty, are you OK?” I glanced back over my shoulder in order to catch the judge’s eye in the hopes of somehow intervening on behalf of my former Sunday School teacher — but the judge was gone. As in “not there.” From the look on Chad’s face, he had just made the same observation.

As the others realized the same thing, an eerie silence hung over us, except for Betty’s sniffles. Finally noticing the confusion on all our faces and taking note of all of us in our places as if court were in session, she asked, “What are all you doing?” puzzlement obvious in her voice.

I spoke for all of us when I said, “I have no idea.”

• • •

No one in the courtroom that day talks about what happened. Chad and I tried to talk about it once, but we didn’t even know where to start. My cousin Todd has kidded me about “Ghost Court.” I sometimes question whether it really happened, but I own a transcript to prove it. The DA’s office did drop the charges against my client shortly thereafter though it resulted in the youngest member of their staff leaving the office for the lure of practicing in the big city. At a different courthouse.

But in the end, I love my courthouse with all its people and peculiarities, even when I can’t explain them.

Chris Kelly CHRIS KELLY is executive vice president and general counsel for the Tennessee Baptist Foundation in Franklin, Tennessee. Before that he was in private practice and a trust officer. He earned his law degree from the Nashville School of Law.

His big break in fiction came in high school when a short story of his was published. “While at the time I thought it was my fast track to literary fame and fortune,” he laughs, “I ended up still having to go to college and law school.”

“I have just recently resumed writing both fiction and nonfiction with some regularity,” he says. “I used to write more fiction, but busy schedules kept squeezing it out. I'm glad to be returning to it. As to reading, I usually keep a fiction book in the rotation along with books from other genres. My father is a retired English professor, so I grew up with lots of books and reading around me.”

Kelly enjoys writing fiction because “quite simply, it allows me to tell a story that has come to life in my mind. It's fun to give the story life and get it out on paper.”